Wetherhorn I sought to establish the right to
effective assistance of counsel in involuntary commitment and forced
drugging cases in Alaska. It also sought to have the "B" prong of gravely
disabled under
AS 47.30915(7) declared unconstitutional. The Alaska Supreme
Court issued its Opinion on January 12, 2007, however rehearing was granted and
a new decision issued April 13, 2007 inWetherhorn v. Alaska Psychiatric
Institute,
156 P.3d 371 (Alaska 2007). We won on
the gravely disabled issue, but the court ruled there was an insufficient record
to rule on the ineffective assistance of counsel issue. It is called Wetherhorn I, because we
had another appeal
for Ms. Wetherhorn, called
Wetherhorn II.

Gravely Disabled Standard Struck Down. In the Decision,
the Alaska Supreme Court ruled that a person could not be involuntarily
committed as "gravely disabled" unless the "level of incapacity [is] so
substantial that the respondent is incapable of surviving safely in
freedom." (emphasis added). This is a huge win. The
court, however, upheld the commitment and we asked for rehearing because there
was no evidence in the record to support commitment under the new standard.
The revised decision acknowledges this holding as follows:

Because we need not determine whether the issues raised by
the facts on record, now moot, meet the gravely disabled standard of AS
47.30.915(7)(B) as construed, . . . we VACATE the superior court’s
order granting that petition without need for remand.

Ineffective Assistance of Counsel Not Decided. With respect to the most important issue, which is people's right to have
lawyers who actually work for them, ie., effective assistance of counsel, the
court ruled that a direct appeal was not the way to challenge it; that there
needed to be a record established in a way that is comparable to post conviction
relief proceedings in criminal cases. We felt the violation was so clear that
it wasn't necessary, but the court ruled it had to be challenged another way.
So, we will proceed to do it in a way that is consistent with the Court's
ruling, which might very well be a 42 USC §1983 lawsuit in federal court for
systemic violations of peoples civil rights under color of state law. See,
e.g.,
http://psychrights.org/Research/Legal/1983/1983.htm

Other Matters. We raised a number of other defects in the proceedings, but
because Roslyn's attorney didn't object to anything, the court ruled we had to
show it would have changed the result under the "plain error" doctrine. This
seems pretty harsh in light of the court also refusing to consider that the
reason the objections weren't raised was because Roslyn's attorney didn't do
anything in her behalf (i.e.., ineffective assistance of counsel). I think maybe
the most problematic one was that the hospital's failure to list witnesses as
required by the statute was not plain error on the grounds, ”[t]hat a
psychiatrist from API would testify in support of a petition initiated by API
could surprise no one.” However, the United States Supreme
Court has unequivocally held that involuntary commitment is permissible only if
"the confinement takes place pursuant to proper procedures and evidentiary
standards," Kansas v. Crane, 534 U.S. 407, 409, 122 S.Ct. 867, 869
(2002). I think it is way outside the bounds of due process for the state not
to be required to say who they are planning to call (and then have an
opportunity to find out the grounds for commitment), and we may therefore seek
United States Supreme Court review of this issue.

Attorney's Fees Following the Decision, we moved
for full attorney's fees as a public interest litigant. However, the
Alaska Supreme Court ruled after that that the Alaska Legislature had validly
abrogated the court made public interest exception to at least Civil Rule 82 and
asked us to file a supplemental brief regarding the effect of this. We
filed this brief on June 8,
2007, asserting the right of all involuntary commitment and forced drugging
victims the right to have the State pay for an attorney to prosecute an appeal.
The State filed its
Opposition on June 29, 2007, in which most significantly, the State
conceded the State has obligation to pay for people to pay for appeals of their
involuntary commitment and forced drugging orders. On July 26, 2007,
the Alaska Supreme Court awarded
us $5,000 in attorney's fees.

The second appeal, S-12249 (Wetherhorn II) asked for
attorneys fees as the prevailing party in obtaining dismissal of the 90-day
commitment and forced drugging petitions. The Supreme Court decided
against us in Wetherhorn
II, on September 21, 2007.

1. Ineffective assistance of counsel;
2. The Petition for Commitment is fatally defective on its face;
3. Involuntarily committing Appellant for being gravelly disabled under
AS 47.30.735(c) as defined by
AS 47.30.915(7)(b), is unconstitutional under the Alaska and
United States constitutions; and
4. The Superior Court erred in finding Appellant incompetent to decline the
medication.

Following this, the State filed a 90-Day Petition for Commitment and Forced
Drugging. We entered the case, demanded a jury trial, among other things,
but because they were looking at a vigorously defended case, before it came to
trial, the State let Ms. Wetherhorn out and dismissed the case. We filed a
modest
motion for $525 in partial attorneys fees
under Civil Rule 82 on
this as the prevailing party as a matter of course, but also suggested enhanced
or full fees were also warranted. The
State opposed saying Rule 82 does not apply to this type of proceeding.
This resulted in us filing a major
Reply really pushing for enhanced or full fees based on the grossly illegal
actions of the hospital and that it was necessary to potentially bring other
lawyers to fill the gap left by the Public Defenders Offices' complete failure
to properly represent its clients in these types of appeal. Many of
the same points in this Reply
will be involved in the main appeal and the fee issue is likely destined to the
Alaska Supreme Court as well (unless we win big and the State decides not to
appeal) because we think it is an important piece in trying to get people real
representation). The State filed a
Supplemental Opposition to
the fee motion to which we filed a
Supplemental Reply.
On February 9, 2006, the trial court issued an
Order Denying the Motion for Attorneys
Fees.

This is kind of an "ambush appeal," in that they had no idea anyone would even
think about filing an appeal because PsychRights did not represent Roslyn in the
initial 30-day involuntary commitment and forced drugging proceeding. That
being so, this case represents "business as usual." Thus, we hope to
demonstrate what a legal travesty these cases are. The transcript of the
hearing is not available yet, but I believe the
petition for commitment is totally
legally inadequate. That this was not challenged by the public defender I
believe demonstrates inadequate representation by itself, in my view, as does
the failure to challenge the constitutionality of the "B part" of Alaska's
gravely disabled statute.

There are two parts to the gravely disabled statute:

(7) "gravely disabled" means a condition in which a
person as a result of mental illness

(A) is in danger of physical harm arising from such complete neglect
of basic needs for food, clothing, shelter, or personal safety as to
render serious accident, illness, or death highly probable if care by
another is not taken; or

(B) will, if not treated, suffer or continue to suffer severe and
abnormal mental, emotional, or physical distress, and this distress is
associated with significant impairment of judgment, reason, or behavior
causing a substantial deterioration of the person's previous ability to
function independently;

However, Alaska's gravely disabled statute has never been
challenged. In fact, as far as I can tell the Public Defenders Office has
never taken an appeal of any involuntary commitment or forced drugging
order. I met with the Public Defenders Office in June of 2004, to advise them
of legal actions on behalf of their clients they were not taking. I
brought a handout of bullet points, which I
went over. One of them was the unconstitutionality of the "B" part of
Alaska's gravely disabled definition. There has been no change in
how the Public Defender Agency
approaches these cases as far as I can tell.

In my view people facing involuntary commitment and forced
drugging are entitled to adequate representation and hope this appeal will
establish some standards for such representation in Alaska. The Montana Supreme
Court did just that a few years ago in the
KGF case.